September 2008

Chapter 415, Florida Statutes, the Adult Protective Services Act, protects
“vulnerable adults” from “abuse, neglect, and exploitation” by “caregivers,”
“Vulnerable adult” means a person 18 years of age or older whose ability to
perform the normal activities of daily living or to provide for his or her own
care or protection is impaired due to a mental, emotional, long-term physical,
or developmental disability or dysfunction, or brain damage, or the infirmities
of aging.” “Caregiver” means a person who has been entrusted with or has assumed
the responsibility for frequent and regular care of or services to a vulnerable
adult on a temporary or permanent basis and who has a commitment, agreement, or
understanding with that person or that person's guardian that a caregiver role
exists. Section 415.1111 provides a cause of action for actual and punitive
damages. The remedies are expressly provided in addition to and cumulative with
other remedies available.
The court holds that an ordinary medical negligence action against an acute care
hospital is not automatically also a cause of action under Chapter 415. However,
the court acknowledges that there are scenarios, such as when the patient is in
a coma and is then abused or neglected, where the statute could apply.

Defendant’s offer to the named plaintiff of the full amount the plaintiff
sought, which the plaintiff rejected, did not render the class action moot. The
court notes that both Florida and federal courts reject the practice of “picking
off” the class representative. See Allstate Indem. Co. v. De La Rosa, 800
So.2d 245 (Fla. 3d DCA 2001); Weiss v. Regal Collections, 385 F.3d 337
(3d Cir. 2004).

Discovery – Medical Records of Nonparties

Graham v. Dacheikh
No. 2D07-5347 (Fla. 2d DCA 8/20/2008)

The court granted certiorari to quash an order that required a doctor who
examined the plaintiff for the defense pursuant to Rule 1.360 to produce all
reports of examinations pursuant to Rule 1.360 that he had prepared for a three
year period. The order allowed the doctor to remove the names and other
identifying information, but made no other provisions for confidentiality and no
provision for in camera inspection. Plaintiff requested these items for
impeachment purposes. The court held that the order departed from the essential
requirements of law because it lacked adequate protections for the privacy of
the nonparties, and made no provision for notification of the nonparties as
required by §456.057(7), Florida Statutes. The plaintiffs did not argue that
such notice would be impossible. The court distinguished Amente v. Newman,
653 So.2d 1030 (Fla. 1995), because Amente was a medical negligence case,
the doctor involved was a party, the evidence related to substantive issues in
the case rather than impeachment, and compliance with the statute was
impossible. The court also notes that because the individuals examined were all
involved in prior litigation, it should be possible to contact them through
their attorneys.

The court suggests that, if the documents are needed for impeachment to show
bias, the plaintiff would not need the entire report of the patient’s history
and examination “as opposed to the doctor’s impressions or conclusions at the
end of his report.”

Where plaintiff dropped her claim for lost wages and loss of future earning
capacity on the day of trial, the trial court properly prohibited the defense
from impeaching her with deposition testimony about her earnings as a waitress
which conflicted with her tax returns. The impeachment would have concerned a
collateral issue.

In Re: Emergency Request to Extend Time Periods Under
All Florida Rules of Procedure for the Third District Court of Appeal
Admin. Order. No. AOSC08-37 (8/21/2008)

Because of Tropical Storm Fay, in the Third District Court of Appeal, “all
time limits authorized by rule and statute applicable to notices of appeal of
final and non-final orders, whether filed in the circuit or county court, are
tolled from 5:00 p.m. on Friday, August 15, 2008 through 8:00 a.m. on Wednesday,
August 20, 2008, nunc pro tunc.” The court allows further discretion in the
courts, in all districts, in which a case is pending, on a case by case basis,
where a party demonstrates that lack of compliance was “directly attributable to
the emergency situation.”

Insurance – Agent

Essex Ins. Co. v. Zota
2008 WL 2520879 (Fla. 6/26/2008)

An insurance broker is an agent of the insured, not the insurer, where the
broker is employed by the insured to procure insurance. However, this
presumption can be overcome by evidence of a special relationship, i.e., indicia
of agency, showing that the broker’s arrangement with the insurer was not a
standard relationship. A broker represents the insured by acting as a middleman,
soliciting insurance from the public under no employment from any special
company, and placing the insurance with a company selected by the insured or, if
the insured does not make a selection, with a company selected by the broker. An
agent represents the insurer under an exclusive employment agreement. The
distinction is important because the acts of an agent are imputable to the
insurer; the acts of a broker are imputable to the insured. Here, the broker was
a broker, not an agent, and the delivery of the policy by the insurer to the
broker satisfied the requirement of delivery to the insured. The court holds
that the requirement of delivery to the insured is applicable to a surplus lines
insurer.

Insurance – CGL Coverage

Auto-Owners Ins. Co. v. Pozzi Window Co.
984 So.2d 1241 (Fla. 2008)

Under a standard CGL policy with products completed operations hazard
coverage, issued to a general contractor, faulty workmanship that is neither
expected nor intended from the standpoint of the insured contractor can
constitute an “accident” and thus a covered “occurrence.” In this case, if the
claim is for repair and replacement of windows that were not initially defective
but were damaged by defective installation, this constitutes physical injury to
tangible property and there is coverage. However, if the windows were purchased
directly by the homeowner and were defective themselves before they were
installed, there would be no coverage.

An insurance policy that provided coverage for “compensatory” damages and
excluded “civil, criminal or administrative fines or penalties” did not provide
coverage for punitive damages or attorneys fees awarded in a medical malpractice
case against the insured. The court remands for the trial court to determine
whether the insurer’s agent’s representations that the policy would cover
punitive damages required coverage under a promissory estoppel theory.

Limitations

C.H. v. Whitney
2008 WL 2219261 (Fla. 5th DCA 5/30/2008)

Amendment of the complaint in a wrongful birth action to substitute the
mother as plaintiff for the guardian of the child related back to the original
filing of the complaint, and was not barred by the statute of limitations, where
the amended complaint sought only economic damages for the benefit of the child,
which were part of the original damages claimed by the guardian.

The relation back doctrine is applied liberally. An amendment adding a new
party relates back if the new party is sufficiently related to an original party
that the amendment would not prejudice the opponent. These principles apply
whether the change in parties is as to plaintiffs or defendants. See, e.g.,
Darden v. Beverly Health & Rehab., 763 So.2d 542 (Fla. 5th DCA 2000). Here,
the complaints arose out of the same conduct, transaction or occurrence. The
child, the guardian and the mother all had an identity of interest in recovering
medical benefits for the care of the child and the defendants showed no
prejudice from the amendment. See Fla. R. Civ. P. 1.190.

The cause of action for wrongful birth belongs to the parents, not to the
child, but it is brought, in part, for the benefit of the child, to obtain funds
to care for the child, and the Supreme Court has held that the money recovered
for the care of the child must be held for the child’s benefit. Kush v.
Lloyd, 616 So.2d 415 (Fla. 1992). The summary judgment motion raised for the
first time the argument that the guardian was not the proper person to bring the
lawsuit. The plaintiff moved ore tenus to amend the complaint at the hearing on
the defendants’ motion for summary judgment. Note that a court has discretion to
grant leave to amend at any time before a summary judgment is entered, and
should grant leave to amend even if the motion is made at the summary judgment
hearing; it is an abuse of discretion to deny leave to amend if it is apparent
that the plaintiff can state a cause of action. E.g., Greenburg v. Johnson,
367 So.2d 229 (Fla. 3d DCA 1979); Old Republic Ins. Co. v. Wilson, 449
So.2d 421 (Fla. 3d DCA 1984). Gate Lands Co. v. Old Ponte Vedre Beach Condo.,
715 So.2d 1132 (Fla. 5th DCA 1998).

Porumbescu v. Thompson
No. 1D07-4231 (Fla. 1st DCA 8/20/2008)

The trial court erred in granting summary judgment to the defendants on the
grounds of statute of limitations where it failed to give the plaintiffs credit
for the automatic 90 day extension of time filed pursuant to §766.104(2), which
is tacked on to the end of the limitations period and does not run
simultaneously with the 90 day presuit tolling period under §766.106(4). See
Hankey v. Yarian, 755 So.2d 93 (Fla. 2000). The court explains that once the
90 day extension under §766.104(2) is “purchased,” the statute of limitations
becomes 2 years and 90 days. This period is tolled by the 90 day presuit
investigation period after the plaintiff serves the notice of intent.

Defendant’s proposal for settlement to plaintiffs was invalid. It offered
$12,500 to each plaintiff and stated that it was “conditioned upon the offer
being accepted by both [plaintiffs]. In other words, the offer can only be
accepted if both [plaintiffs] accept and neither plaintiff can independently
accept the offer without their co-plaintiff joining in the settlement.” In light
of the “penal nature” of §768.79 and the requirement of strict construction, the
court held the proposal invalid because one offeree could be subject to the
penalty of paying attorneys fees due to the actions of the other, and could not
make an independent decision to accept or reject the proposal. The court
distinguishes Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), which
upheld an offer to two defendants which conditioned acceptance on both
defendants accepting the offer. The court points out that Clements
actually decided only whether the offer in that case was ambiguous, and did not
address the issue addressed in this case. However, the court certifies conflict
with Clements to the extent that it holds valid joint offers conditioned
on acceptance by all of the joint offerees.

Sanctions

Granados v. Zehr
979 So.2d 1155 (Fla. 5th DCA 2008)

Art. I, §21, Fla. Const. guarantees the right of access to courts. Therefore,
courts should be very cautious in dismissing a case for fraud on the court, and
should only do so based on clear and convincing evidence of fraud, pretense,
collusion or other similar wrongdoing. Where a plaintiff, in answering
interrogatories, denied prior injuries, physical infirmities or sickness, but
disclosed the name of the doctor who had treated her for back pain a year
before, the issue was appropriate for cross examination but dismissal was
excessive. “While this might be considered an inconsistency, a nondisclosure or
even a false statement, it quite clearly did not unfairly hamper the preparation
of the defense.” “Generally speaking, therefore, allegations of inconsistency,
nondisclosure, and even falseness, are best resolved by allowing the parties to
bring them to the jury's attention through cross examination or impeachment,
rather than by dismissal of the entire action.”

Ibarra v. Izaguirre
2008 WL 2116665 (Fla. 3d DCA 5/21/2008)

Dismissal was too harsh a sanction for plaintiff’s failure to disclose a slip
in a bank when asked about accidents or injuries prior to or after the accident
that was the subject of the suit. The plaintiff had slipped but did not fall;
experienced some discomfort the following night; did not make a formal claim,
and reported the fall to the bank but did not hire a lawyer or bring suit. Clear
and convincing evidence of fraud is required. Alleged inconsistencies can better
be handled through impeachment or cross examination.

There seems to be a trend developing limiting the sanction of dismissal for
fraud on the court to the most egregious cases. But be careful with these cases.
Not every dismissal results in a reported opinion. I am aware of at least one
recent PCA without opinion.

Burgess v. Pfizer
No. 3D07-754, 3D07-455 (Fla. 3d DCA 8/3/2008)

The court upholds monetary sanctions against plaintiff’s attorney, but
reverses monetary sanctions against the plaintiff and also reverses dismissal of
her complaint, where all of the improper conduct, disobedience of orders
regarding pleadings, and failure to appear at a case management conference were
the actions of the attorney, not the client.

Statutes – Retroactivity

Williams v. American Optical Corp.
985 So.2d 23 (Fla. 4th DCA 2008)

The Florida Asbestos and Silica Compensation Fairness Act, Chapter 774, Part
II, Florida Statutes, was enacted in 2005. It requires a claimant bringing an
action for damages from exposure to asbestos, as an indispensable element, to
plead and prove an existing malignancy or actual physical impairment for which
asbestos exposure was a substantial contributing factor. Prior to the act, it
was only necessary to show that they had suffered an injury from an
asbestos-related disease. Florida recognized a cause of action for asbestos
disease without any permanent impairment or cancer. The plaintiffs had filed
suit before the effective date of the Act. The court held the Act could not be
applied retroactively to their claims. Their right to their cause of action was
vested before the enactment of the Act. Therefore, it was error to dismiss their
claims on the ground that they had not yet suffered any malignancy or actual
physical impairment. The court recognizes that a cause of action which has
accrued is a form of intangible property and cannot retroactively be impaired or
abolished by statute.
The court agrees with the plaintiff that the Third District’s decision in
Daimler Chrysler Corp. v. Hurst, 949 So.2d 279 (Fla. 3d DCA 2007) is
distinguishable because the plaintiff in that case could not prove any medical
connection between asbestos exposure and his illness. However, noting that
courts have been applying Hurst more broadly, the court certifies
conflict, “to the extent that it does stand for a holding that the Act may be
validly applied to asbestosis claimants with accrued causes of action for
damages but without permanent impairments or any malignancy.”

Also finding that the Act is not severable, because “it is not intellectually
possible on the basis of any recognized principles to disconnect the several
provisions of an Act whose singular purpose is to end litigation by claimants
who have been damaged by asbestos exposure without resulting malignancy or
physical impairment,” the court holds the act in its entirety is inapplicable to
these claims.